The blog of ObiterJ - responsible and sometimes critical comment on legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
'The life of the law has not been logic; it has been experience. The law embodies the story of a nation's development...it cannot be dealt with as if it contained the axioms and corollaries of a book of mathematics' - (Oliver Wendell Holmes - 1841 to 1935). Pro Aequitate Dicere

'All the inquisitions will be quashed. There will be
new inquests in each and every case. The legislation relating to venue
is, as we have said in argument, problematic. The inquests will be
remitted to another coroner for the same administrative area as the
original inquests: in relation to the 95 victims the South Yorkshire
(East) area at Doncaster; and in relation to the inquest into Anthony
Bland, to the West Yorkshire (West) Coroner at Bradford.'
Merely as a passing observation, it is a pity that, somehow, the inquests could not be held in a location perhaps more convenient to the families. A venue such as Manchester's relatively new Civil Justice Centre would seem more suited.

At para 31, Lord Judge said - 'An assistant deputy coroner will be appointed in
accordance with the appropriate processes, and pre-inquest hearings will
then be organised.'

The judgment is short and should be read in full. In the following, paragraph numbers are in [ ].

Lord
Judge emphasised the finding of Lord Justice Taylor's inquiry that the
'main reason for the disaster was the failure of police control' [3].
Lord Judge went on [4] - 'That should have been that. Unfortunately the
culpability of the police was not acknowledged, andindeed a campaign
was mounted to undermine confidence in Taylor LJ's conclusions. These
were developed at the inquest which took place in the winter of
1990/1991 and continued thereafter. Notwithstanding its falsity the
tendency to blame the fans was disappointingly tenacious and it lingered
on for many years.'

As regards alcohol, Lord Judge noted another
finding of Lord Justice Taylor [5] - ' ... the great
majority of the fans were not drunk or even the worse for drink .... '

In
[6] Lord Judge described the so-called 'mini-inquests' and refers to
the crucial decision of the Coroner to impose a "cut off" period so that
the inquiry into events on that
afternoon never extended beyond 3.15pm. On 28th March 1991, the jury
returned verdicts of accidental death although the possibilities of
unlawful killing or open verdicts had been left for them to consider. A later
inquest into the death of Tony Bland returned the same verdict. The
process resulting in the accidental death verdict was not regarded as
satisfactory by the families of the victims and, at the inquests,
representations were made to the Coroner about the 3.15 cut off.
Since the inquests, there has been 'a profound, almost palpable, belief that
justice has not been done and that it cannot be done without and until
the full truth is revealed' [7].

In [10] Lord Judge
stated that the single question was whether the interests of
justice make a further inquest either necessary or desirable. In [11]
the Hillsborough Independent Panel report is referred to and Lord Judge
said that the members of the court had studied it in full. It was clear
[12] that there were features of the evidence casting new light on the
circumstances in which the deceased came to
meet their deaths.

The court considered these
features. The flawed 3.15 pm cut off was, in itself, sufficient ground to
order fresh inquests [13-21]. Further features were the prominence
given to alcohol [21], alterations or amendments of statements [24-26]
of which the jury was unaware and. at [27] safety of the stadium.

The alterations of statements extended beyond S. Yorkshire Police to the S. Yorkshire Ambulance Service and the S. Yorkshire Fire Service. 116 out of 164 Police statements were amended though, sometimes, in minor ways - e.g. to remove expletives. Solicitors were involved in the amendment of statements. In [25] examples are given of statements being altered with a view to concealing evidence. It will be open to a new inquest to reflect whether the efforts made to conceal evidence relating to neglect and breach of duty may have a bearing on the cause of death [26]. A statement is, of course, intended to be a record of matters such as what the maker of the statement did and observed at the time. As such, original statements ought to be allowed to stand. Original statements referring to lack of leadership and supervision might well be relevant if, for example, it can be shown that this led to failure to take timely action which might have saved lives. How the new inquest handles this area will be of particular interest.

It will be for the coroner conducting
the new inquest to decide what evidence bears on the questions which the
inquest is required to answer [28]. The inquest will take place in public,
but it will not be a public inquiry. It will be a coronial process.
The inquest will be conducted in accordance with those processes and
with the objectives of the inquest in mind. The coroner will have to
decide the format of the inquest and whether Article 2 of the European
Convention on Human Rights is engaged in this inquest, and, if so, the
form that it should take to address these issues. (See R (Middleton) v HM Coroner for Somerset
[2004] 1 AC 182). Finally, Lord Judge said - "like the Independent Panel, we should
deprecate this new inquest degenerating into the kind of adversarial
battle which, looking back on it, scarred the original inquest." [My emphasis].

This last observation is very important since an inquest is supposed to be an inquisitorial procedure and not adversarial. (This point is relied upon by government in relation to the general absence of legal aid for the family of a deceased person though, exceptionally, legal aid can be available).Article 2 Compliant Inquests:

Thus, the Administrative Court seems to be in no doubt that the fresh Hillsborough inquests could be Article 2 compliant - it being left to the Coroner to decide whether they actually will be.

Hillsborough occurred on 15th April 1989. Although the European Convention has bound the United Kingdom in international law since 3rd September 1953, it was not until 1st October 2000 that the Human Rights Act 1998 (HRA) came into legal force. The HRA is vital in requiring courts in the UK to apply convention rights - essentially 'bringing rights home.' An undoubted object of the HRA was to reduce recourse to the European Court of Human Rights (E Ct HR).

The E Ct HR regards the Convention as a 'living instrument.' This approach is necessary if the Convention is to remain relevant to prevailing circumstances though, in some - mainly political - quarters, the living instrument approach is now being questioned. Article 2 (Right to Life) is an example of where the E Ct HR has extended the application of a Convention right. In McCann v United Kingdom (1995) 21 EHRR 97
it was held that article 2 by implication gave rise not
merely to a substantive obligation on the state not to kill people but,
where there was an issue as to whether the state had broken this
obligation, a procedural obligation on the state to carry out an
effective official investigation into the circumstances of the deaths
("the procedural obligation"). There has been much discussion as to whether the existence of the
procedural obligation depended on the State being in breach (or possible
breach) of the substantive obligation. I return to this point below.

In R (Middleton) v HM Coroner for Somerset [2004] 1 AC 182, the House of Lords held that, in order to be compliant with Article 2, the Coroners Act 1988 s11 had to be interpreted so that 'how' the deceased came by death meant not only 'by what means' but also 'in what circumstances.'

In a number of cases, the House of Lords held that no claim lay in respect of an alleged breach of the Convention if the
facts giving rise to the alleged breach predated the entry into force of
the HRA. The issue then arose of whether the procedural obligation to
investigate a death applied after the HRA had come into force in
relation to a death that had occurred before the Act came into force. In
In re McKerr [2004] UKHL 12; [2004] 1 WLR 807
the House of Lords held that it did not. McKerr was applied by the House of Lords in R (Hurst) v London Northern District Coroner [2007] UKHL 13; [2007] 2 AC 189 and Jordan v Lord Chancellor [2007] UKHL 14; [2007] 2 AC 226.

This approach changed with the Supreme Court decision in McCaughey [2011] UKSC 20. In McCaughey, a case from Northern Ireland, the appellants contended that the basis of the decision of the House of Lords in McKerr was destroyed by the decision of the E Ct HR in Šilih v. Slovenia (Application no. 71463/01) 2009 and thatif an inquest is held into a death that predated October 2000 (the coming into force
of the HRA) there is an obligation under the HRA to ensure
that it complies with the requirements of article 2. By a 6 to 1 majority judgment, the Supreme Court accepted this argument and held that a pre HRA event might have to be subject to an Article 2 (Middleton) investigation.

In McCaughey, it was also clearly pointed out that the Strasbourg case law was now such that the procedural obligation was not dependent on the State being in breach (or possible
breach) of the substantive Art 2 obligation. The procedural obligation is 'free standing' and not parasitic on the existence of a breach of Art 2 (or possible breach).

McCaughey - being a decision of the UK Supreme Court - is therefore of the highest authority that the fresh Hillsborough inquests could be Art 2 (Middleton) inquests. Given the involvement the Police on that tragic day as well as South Yorkshire's Ambulance and Fire Services, it seems very likely that the new inquests will be held in an Art 2 (Middleton) compliant way though this is, of course, a decision for the Coroner conducting the inquests.The E Ct HR's decision in Šilih v. Slovenia has been severely criticised, not least by the UK Supreme Court where it was described in Lord Rodger's dissenting judgment as 'poorly reasoned and unstable' and Lord Hope said - 'Only the most starry-eyed admirer of the Strasbourg
court could describe the guidance that the Grand Chamber offered in para
163 of its judgment in Šilih as clear.' The criticism stems from the way in which the E Ct HR sought to apply some 'controls' over investigations into historic events. This is discussed by Lord Phillips at para. 44 of McCaughey. Nevertheless, the Supreme Court adopted the judgment essentially on the basis of the 'mirror principle' - i.e. that application of the HRA should mirror that of the Convention. The object of the Act was to bring human rights home and this could only be achieved if claimants are able to bring in this
jurisdiction claims that they would otherwise be permitted to bring
before the Strasbourg Court.

Under the Coroners Act 1988 s8(3)(d) - 'public safety' - a jury would seem to be required. The Coroners and Justice Act 2009 s.7 amends (and limits) the requirements for juries but this is not yet in force. An interesting question will be whether the new Act applies should it be implemented before the time at which a fresh inquest is opened.

About Me

There are no aspects of modern life untouched by law. My main interests are criminal law, constitutional law, human rights, family law, European Union law and some aspects of international law.
In law, the word "obiter", refers to remarks which are "by the way." My own comments are also "by the way" - I write about events which happen to interest me. I do not seek to dictate or even to persuade: merely to comment and inform and this blog must never be used as a substitute for professional legal advice.
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